Tennessee Leather Products, Inc.

TENNESSEE LEATHER PRODUCTS 495 Tennessee Leather Products, Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 10-CA-9466 November 28, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 19, 1972, Administrative Law Judge' Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Tennessee Leather Products, Inc., Jacksboro, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. conceded certain facts with respect to its business operations, but denied all allegations that it had committed any unfair labor practices. At the trial all parties were represented. All were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, and to file bnefs. The parties waived oral argument. Briefs were submitted by the Respondent and the General Counsel on June 14 and June 19, 1972, respectively. Upon the entire record in the case, including the briefs of counsel, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Tennessee corporation with its principal office and place of business located at La Follette, Tennessee, is engaged in the manufacture of leather and suede garments. The raw materials are shipped from New York City to the plant at La Follette where the leather is processed into suede coats and thereafter the finished products are returned to New York. This work is performed, on a contract basis, for one or more other corporations controlled by Mr. and Mrs. Irving Feinrider, who have two plants in New York and one in Turkey. All the stock in the respondent corporation is held by Dennis Feinnder, their son, who is the president of Tennessee Leather Products, Inc. During the past calendar year, a representative period, the Respondent performed services valued in excess of $50,000 for customers located outside the State of Tennessee and shipped goods valued in excess of that amount to customers located outside that State. Upon the foregoing facts, the Respondent concedes, and the Trial Examiner finds, that Tennessee Leather Products, Inc., is engaged in commerce within the meaning of the Act. i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings However, Chairman Miller, in accepting the Administrative Law Judge's credibility resolutions, expressly would note he finds it unnecessary to consider the Administrative Law Judge's application of N L R B v Wallick & Schwalm Co, 198 F 2d 477 (C A 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT E. MULLIN , Trial Examiner . The trial of this case was held in Jacksboro, Tennessee, on May 17 and 18, 1972, pursuant to charges duly filed and served by the International Association of Machinists and Aerospace Workers, AFL-CIO (hereinafter known as the Union, or IAM),1 and a complaint and notice of hearing issued on April 20, 1972. The Respondent filed an answer wherein it i All charges were filed in 1972, the original charge on March 7, a first amended charge on March 17, and a second amended charge on March 29 II. THE LABOR ORGANIZATION INVOLVED The Respondent concedes, and the Trial Examiner finds, that the IAM is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The Respondent's plant was opened in the spring of 1971. Thereafter it quickly went into full production. During the summer months of that year it had from 100 to 200 employees engaged in the manufacture of suede coats. From September through December the number of employees remained at a level in excess of 200. Shortly before Christmas there was a substantial layoff. By January 14, 1972, the employment level was down to 151. By January 28, it had dropped to 134 and by March 24, it had fallen to 116. Thereafter, however, it began to rise and in May 1972, the Respondent had 174 employees. Mr. Irving Feinnder and Plant Manager George Messing 200 NLRB No. 73 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credibly testified that this cyclical fluctuation in the number of the Respondent's employees occurred regularly and was necessitated by the seasonal character of the business. The IAM began an organizational campaign early in January 1972.2 On January 18, the Respondent discharged Ove Shoup and laid off Joseph R. Douglas and Hattie Sue Massengill, as well as others . The General Counsel alleges that the Respondent discriminatorily terminated the three aforenamed employees . These allegations are denied by the Respondent in their entirety. B. The Alleged Violations of Section 8(a)(1); Findings and Conclusions With Respect Thereto Early in January 1972, representatives of the IAM arrived in La Follette and sought to enlist support for that union among the Respondent 's employees . On about January 10, Union Representative Harry F. Duncan and an associate called on employee Ove Shoup at his residence . After Shoup signed an authorization card for the organizers, he accompanied them thereafter on visits to the homes of several other employees in the La Follette area. The General Counsel alleged that at various times supervisory personnel stated that the Respondent would close the plant if a union was selected to represent the employees. Thus, Ove Shoup testified that on an occasion about 3 to 4 months before his discharge in January he was assigned to drive Plant Manager George Messing3 from La Follette to the Knoxville airport. According to Shoup, during the course of this trip, Messing told him that several employees had come to his office recently to inquire about a union and that he had told them that if a union came to the plant not only would they have a substantial obligation in dues payments but that the Company would move the plant so that no one would have any work. Messing denied that he had ever made the remarks attributed to him by Shoup. The latter, however, was credible in this regard. On January 18, employee Hattie Sue Massengill was laid off under circumstances that are an issue in this case. She was notified of the layoff by her supervisor, Cleo Moneymaker. According to Mrs. Massengill, the supervi- sor told her that she was being laid off because the Union was trying to come in and that the plant would probably move . Ruby Chapman, an employee working at a nearby machine testified that she overheard part of this conversa- tion and that she heard Mrs. Moneymaker state that the "The Company wouldn't have a union." Supervisor Moneymaker conceded that in her conversation with Massengill she had mentioned that there was "going to be trouble," but she denied that she had mentioned the Union or the prospect of the plant closing. Mrs. Massengill was a credible witness and so, too, was Ruby Chapman, who at the time of the hearing was still in the Respondent's employ The denials of Supervisor Moneymaker, on the other hand, were unpersuasive, for reasons that are discussed more fully hereinafter. Consequently, it is the conclusion of the Trial Examiner that the account of this conversation, as given by Massengill and Chapman, was the more accurate. Paul Massengill testified that in January, he was referred to the Respondent's plant by the Tennessee State Employ- ment Service and that on about January 25 he had an employment interview there with Supervisor Doyle McCauley. According to Massengill, McCauley questioned him as to how he felt about a union and when he (Massengill) gave a noncommittal response, McCauley told him that the Company had no union "and ... we don't want one either."4 The Respondent never called McCauley as a witness and offered no explanation for his nonappearance. Massengill's testimony stands undenied and uncontradicted. Since it was credible, the Trial Examiner concludes and finds that the conversation with Supervisor McCauley occurred substantially as Massengill testified. Junior Norman, an employee during the time in question, testified that during the early part of January, Garland Parrot, a supervisor in the cutting department, questioned him about the Union . According to Norman, Parrot asked him "when the new union was moving in ..." Norman testified that in his reply to the supervisor he disclaimed any knowledge of the Union. Parrot admitted that "sometime in January" he "heard talk that there was going to be a union coming in." When asked if he heard that from employee Norman he replied , "No sir, I can't say strictly Norman." Nevertheless, Parrot denied that he had questioned Norman about the Union and testified that since he was a supervisor he had no interest in unions. Parrot's asserted lack of interest in the subject of the employee organizational campaign was totally implausible. It is the conclusion of the Trial Examiner that, as Norman testified, Parrot did interrogate the employee early in January as to when the IAM was "moving in." On an evening in mid-February, the Union held an organizational meeting at a nearby Holiday Inn in Caryville, Tennessee . The General Counsel alleged that this meeting was the subject of unlawful surveillance by several of the Respondent's supervisory staff. This motel is flanked on one side by a recently completed interstate highway and on the other side by the road which the new highway replaced . The old road, although not abandoned, no longer carries any volume of traffic, particularly at night. It was on this route that the alleged surveillance occurred. Junior Norman testified that while standing in the motel parking lot before the meeting opened, he saw Supervisor Don Pierce drive by. According to Norman, Supervisor Ben Gibson and Plant Manager George Messing were also in the same car. Norman testified that about an hour later when the meeting was over, he observed the same car parked on a hill a short distance away from the motel. Norman conceded, however , that on this latter occasion he could not identify anyone who was in the automobile. George Messing denied that he had ever been in the vicinity of the Holiday Inn during this period and he denied that he was in Pierce's car on the night in question. 2 All dates hereinafter are for the year 1972 , unless specifically noted the Respondent's plant otherwise 4 The quotation is from Massengdl's testimony 3 George Messing and his brother Robert Messing were comanagers of TENNESSEE LEATHER PRODUCTS 497 Pierce and Gibson denied all knowledge of any union meeting and denied having made any attempt to spy on employee activities at such a meeting Messing's denial that he was with Pierce during the union meeting was completely credible. The denials of both Pierce and Gibson that they had sought to observe the employees as they gathered at the Holiday Inn or thereafter were likewise credible. At the time, both Pierce and Gibson were young, unmarried men They conceded that while together on social occasions they had driven along the deserted highway that bordered the motel and that they might have done so at various times during the month of February. It is the conclusion of the Trial Examiner that even if Pierce and Gibson drove by the Holiday Inn while the union meeting was in progress and thereafter parked their car along the roadway, whatever their objective might have been on that evening, there is unsufficient evidence in this record to establish that at such time they were engaged in unlawful surveillance or industrial espionage On the foregoing facts, the Trial Examiner concludes and finds that the Respondent engaged in interference, restraint, and coercion within the meaning of the Act and thereby violated Section 8(a)(1) by Plant Manager George Messing's comment to Shoup that if a union came to the plant the Company would move and by Supervisor Moneymaker's statement to employee Massengill that she was being laid off because the Union was trying to come in, that the Company would not have a union, and that the plant would probably move. In the context of these threats, the Respondent likewise violated Section 8(a)(1) of the Act when, on about January 25, Supervisor Doyle McCauley interrogated employee applicant Paul Massengill as to his attitude about a union, and earlier that month when Supervisor Garland Parrott questioned employee Junior Norman as to when "the union was moving in " C. The Alleged Violations of Section 8(a)(3), Findings and Conclusions With Respect Thereto I Ove Shoup a. The issue as to supervisory status Shoup was employed in May 1971 and was terminated on January 18, 1972. He began work in the shipping and receiving department at the rate of $1 60 an hour. Sometime within a month or two before his termination he received a 5-cent raise. When Shoup was first hired he worked with employee Russ Ellison. Sometime later, Ellison quit and then, for 2 to 3 months, Shoup was alone. In September or October, two new employees, Robert Wright and Leonard Franklin, joined him. Shoup testified that he received all his orders from George Messing and that, when the two last named employees started to work, Messing told him to teach them how to do the job. According to Shoup, he and the two others were responsible for selecting suede coats to fill customers' orders, packing the coats for delivery, and thereafter shipping them out. Shoup testified that he and his two fellow employees all did the same type of work and rotated working at these three different jobs during the course of each day. Occasionally they were assisted by one or two of the truckdnvers. Shoup credibly testified that he had no authority to hire or discharge, suspend, transfer, discipline, grant time off, promote, or effectively to recommend such action Shoup further testified that he was never told by management that he had any of the foregoing authority and that he never attended the meetings held for supervisors. According to Shoup, he performed the same duties as other employees in the shipping and receiving department and until a short time before his termination, when he received a 5-cent increase, he received the same pay as his coworkers. The Respondent contends that Shoup was, in fact, a supervisor in charge of the shipping and receiving department. Plant Manager George Messing testified that after Ellison quit in June 1971 he told Shoup and one Kenneth Gibson "to take charge"5 of shipping and receiving and that later, when Gibson was transferred to another department, he put Shoup in sole charge of shipping and receiving. However, Messing could not recall when he purportedly took this action. Messing conceded that Shoup's pay was lower than that of any supervisor in the plant, but explained that "The other supervisors had more people to take care of 10 to 12 where he [Shoup] only had two or possibly three."6 Messing likewise acknowl- edged that Shoup did not have the power to hire or discharge, but testified that if Shoup was dissatisfied with an employee he could recommend a transfer. Messing conceded, however, that Shoup never reported to him that he was dissatisfied with anyone in the shipping and receiving department. It is well settled that the statutory definition of a supervisor7 must be construed in the disjunctive. Ohio Power Co. v. N.L R.B, 176 F.2d 385, 387 (C.A. 6), cert. denied, 338 U.S 899. It is equally well established that it is the existence of supervisory authority in the individual which is determinative, regardless of the title which he may hold. Mississippi Valley Barge Line Co., 151 NLRB 676, 678, enfd. 353 F.2d 904 (C.A.D.C.); Red Star Express Lines, of Auburn, Inc. v. N. L. R. B., 196 F.2d 78, 79-80 (C.A. 2). In N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (C.A. 4), cert. denied, 359 U.S. 911, the Court there stated, with reference to this issue, "It is . . . clear . . . that the employer cannot make a supervisor out of a rank-and-file employee simply by giving him the title and theoretical power to perform one or more of the enumerated supervisory functions. The important thing is the possession and exercise of actual supervisory duties and authority and not the formal title." So here, notwith- standing the Respondent's contention that Shoup was a supervisor, it is the conclusion of the Trial Examiner, on the findings set forth above, that: (1) Shoup's duties and his responsibilities in connection with new employees did 5 The quotation is from Messing's testimony promote, discharge, assign, reward, or discipline other employees, or 6 The quotation is from Messing's testimony responsibly to direct them, or to adjust their grievances, or effectively 7 Section 2(l 1) of the Act reads as follows to recommend such action , if in connection with the foregoing the The term "supervisor" means any individual having authority, in the exercise of such authority is not of a merely routine or clerical nature, interest of the employer, to hire, transfer, suspend, layoff, recall, but requires the use of independent judgment 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not go beyond "the customary control of an experienced workman over his less skillful helpers." Southern Bleachery, supra, at p. 238; and (2) that, among the two or three employees in the shipping and receiving department, Shoup was at most a leadman, and that he neither had the statutory authority of a supervisor, nor did he exercise it. b The discharge As found above, about January 10, Shoup signed an authorization card for the IAM, and thereafter accompa- nied the union organizers on visits to the homes of other employees. Shoup was discharged in the middle of his shift on January 18. According to the employee, at about 12:45 that day, George and Robert Messing came up to him while he was at work. Shoup testified that George Messing thereupon abruptly declared that he was fired and then told him to collect his belongings and report to the office. Shoup testified that as he and George Messing went for the office,8 Messing told him " . you think we're stupid here-you think we don't know about the union... . Shoup testified that when he attempted to say something, Messing ordered him to be quiet and then told him that he [Messing] was saving his life because, if the Union came in and caused the factory to move, the employees would kill Shoup for having closed the plant. According to Shoup, on arriving at the manager's office, he noticed an IAM card on Messing's desk and at that point Messing commented "you think we don't know about the IAM" and then told Mrs. Ivy, a secretary in the office, to prepare Shoup's discharge slip and attribute his termination to unsatisfacto- ry work. Shoup testified that throughout the course of this incident whenever he endeavored to respond to Messing's remarks, the latter ordered him to be quiet and that, as soon as Mrs. Ivy completed his termination slip he left the plant. Whereas the Respondent contends that several employ- ees, including Hattie Massengill and Joseph Douglas, were laid off during this period, George Messing9 acknowledged that Shoup was discharged and that he was the only employee to be dismissed at that time. Messing denied that he mentioned the Union at any point during his confronta- tion with Shoup and testified that the employee was terminated as the result of dissatisfaction with his work over a long period of time. According to Messing, for months there had been complaints that Shoup had not been filling orders properly, that he was making mistakes on shipments, and that he was wasting time talking to the girls in another department. Supervisor Annie Haynes corroborated Messing in the latter respect and testified that she considered Shoup a nuisance in connection with his practice of visiting with her employees. Miss Haynes testified that she had complained both to Shoup personally about this habit and had spoken to Messing about the matter. Messing testified that the decision to discharge Shoup was made in September and had not been effectuated earlier because that was the busy season and Shoup would have been hard to replace. He denied that union activities had anything to do with Shoup's termination and attribut- ed the discharge solely to dissatisfaction with Shoup's working habits. Although Messing testified that Shoup's termination was delayed until the end of the rush season, the Respondent's evidence as to the plant's production established that the slack period began long before January 18. During September, October, and most of November, the Respon- dent was cutting a weekly total of from 2,000 to 2,800 coats. The first 2 weeks in December this total dropped to about 1,800 coats and the last 2 weeks of that month no coats were cut During the first 3 weeks in January the weekly production total ranged from 331 to 676. A substantial layoff of employees occurred in December 1971, and early in January the number of employees was down to 151 as compared to well over 225 in December. From these statistics it would appear that if Shoup's termination was decreed in September, as Messing testi- fied, it would have been effected in December when the seasonal decline first began. Instead, no action was taken and the employee was kept for another month, or more. If Messing were to be believed, it also would appear likely that in late December or early January, Shoup would have been laid off at the end of a pay period. Instead, weeks after the seasonal decline had begun, Plant Manager Messing abruptly discharged him in the middle of a shift and ordered him off the premises. iO It is the conclusion of the Trial Examiner that Messing was not credible when he testified that the decision to discharge Shoup was reached in September, and that his termination was delayed only to await the beginning of the seasonal slump in the Respon- dent's operations. During the cross-examination of Shoup, counsel for the Respondent elicited testimony that, in addition to Mrs. Ivey, the plant secretary, several other coworkers and office personnel were present during the conversational exchange when Plant Manager Messing discharged Shoup. The Respondent, however, never called, nor did it offer any explanation for not calling, any of these employees to corroborate Messing's version of what occurred. The failure of the Respondent to call these witnesses who were still in its employ and within its power to produce would tend to indicate that had they testified they would not have corroborated Messing. N L.R.B. v. Wallick & Schwalm, Co, 198 F.2d 477, 483 (C.A. 3).ii In the light of the foregoing considerations, the Trial Examiner concludes that Shoup's account of his dismissal is the more credible. From this testimony it is clear that when Messing told Shoup he was being discharged, he plainly stated his awareness of that employee's union activities ("you think we're stupid here-you think we don't know about the union"); the plant manager further declared that if the Union came in the plant would be closed and he also told the employee that if this occurred Shoup would be the one responsible. It may be that Shoup, as an employee, left much to be 8 Shoup testified that at this point Robert Messing left and went about iO See N L R B v Shovel Supply Company, 257 F 2d 88, 92 (C A 5), his duties where the Court considered it significant evidence of discrimination that the 9 For the balance of the discussion of the Shoup discharge references to discharges in question occurred in midweek and not on a regular payday "Messing" are to George Messing only 11 See also Interstate Circuit, Inc v. United States, 306 U S 208, 226 TENNESSEE LEATHER PRODUCTS desired. On the other hand, the numerous complaints as to his work about which Messing and Miss Haynes testified had been registered over a period of many months and although, from their accounts, he had been reprimanded orally several times, he had never been subjected to any more serious discipline. Nor was any particular incident offered to explain what triggered his sudden termination in the middle of a shift on January 18. It is the conclusion of the Trial Examiner, on the facts set forth above, that Shoup's conduct "apparently became intolerable only after he had joined the union." N L R B v. Electric City Dyeing Co., 178 F.2d 980, 983 (C.A. 3).12 Accordingly, the Trial Examiner finds that the reason offered by the Respondent for his termination was a pretext and that the real motive for his abrupt dismissal was Shoup's identification with the IAM. In taking this action, the Respondent violated Section 8(a)(3) and (1) of the Act. 2. Hattie Sue Massengill Mrs. Massengill was employed by the Respondent in October 1971 and was laid off on January 18, 1972. Before being hired by the Respondent, Mrs. Massengill worked at another plant in the vicinity where, during the course of a long strike, she was terminated. Robert Messing testified that he knew about this part of her background at the time he hired her, but that had it been a matter of no concern to him. Shortly after being employed, Mrs Massengill was assigned to work on facings, a part of the inside of each coat. Two other employees, Wanda Evans and Mabel Hill, also worked on this specialty. Hill was laid off in December and was not recalled. Evans was kept on the job after Massengill was laid off. Floorlady Cleo Moneymaker, Massengill's immediate supervisor, testified that on Janu- ary 18 the latter was laid off for lack of work and that she was selected for layoff by Robert Messing. Both Messing and Moneymaker conceded that Massengill was very competent. Mrs. Moneymaker described her as a "very good worker. Fast worker and good." In mid-January, when the union campaign began at the plant, Mrs. Massengill signed an IAM authorization card. From her own testimony, however, it appears that the rest of her union activity consisted only of talking about the IAM with her fellow employees. Mrs. Massengill testified that just before quitting time on January 18, Floorlady Moneymaker came to her machine and told her that she was being laid off "because the Union's trying to come," that she had been given orders to lay Massengill off, and that the plant would probably move. As found earlier Massengill's testimony was credible and it was corroborated in part by Ruby Chapman, a coworker at another machine in the area. According to Chapman, during the conversation with Massengill the floorlady also stated to her (Chapman) that "The Company wouldn't have a Union." On about January 20, Mrs Massengill and her sister-in- law, Louise Massengill, returned to the plant where she sought out Robert Messing to inquire as to when she could 12 See also Hugh H Wilson Corp v NLRB, 414 F 2d 1345, 1352 (C A 3), cert denied 397 U S 935, and Edward G Budd Mfg Co v N L R B, 138 499 expect reemployment. Mrs. Massengill testified that she asked Messing whether he had laid her off because of the Union, and that he answered "no, I didn't say that it was because of the Union. I do have problems with the Union and . . I didn't come here for problems . . and [if ] I don't have any problems solved by the end of the week I plan on moving." Mrs. Massengill testified that, during the conversation, Messing reminded her that she was not the only one to be out of work and that 25 to 30 others had been laid off also. Louise Massengill corroborated the testimony of her sister-in-law. According to the former, Messing concluded their meeting with the statement, "I have problems with unions. I didn't come down here with problems and I don't intend to have problems. If I can't get my problems settled maybe I'll move." Robert Messing acknowledged having had a conversa- tion with Mrs. Massengill on about January 20. He at first denied having made any reference to the Union, but on cross-examination admitted that he did not recall whether the Union was mentioned . Mrs. Moneymaker denied that at the time she made the layoff announcement to Massengill there had been any mention of the Union. She conceded, however, that she had said that "there was going to be trouble," but without specifying what kind of trouble she had in mind. Mrs. Moneymaker testified that she could not recall any conversation at all with Chapman. Notwithstanding her denials that the Union had been mentioned in her discussion with Massengill and Chap- man, Mrs. Moneymaker testified that the advent of the Union advanced the date of the seasonal layoff at the plant. According to the floorlady, the night before Massengill was laid off, three employees had come to her home and told her that the following day the workers were going to picket the plant and close it down. She testified that immediately after this visitation she telephoned Annie Haynes, another floorlady. The latter confirmed having had such a conversation with Moneymaker and Robert Messing testified that the next morning Miss Haynes relayed to him the substance of her conversation with Moneymaker. Mrs. Moneymaker testified that on the morning of the layoff several of the employees were stationed outside the plant. This appears to have been an abortive attempt at setting up a picket line. In any event, it proved ineffective in preventing any employee from reporting for work, for Mrs. Moneymaker testified that it did not interfere with the normal operation of the plant that day. On the other hand, she testified that the prospect of a shutdown because of picketing slowed production and "we had to lay off some people because we didn't know exactly from one day to the next what was going to happen...." She further testified that the date of the layoff was advanced because of this union activity. On cross-examination she was asked the following question and gave the answer which appears below: Q. So that the whole layoff was moved closer because these three employees came to your house and told you that . . . there was going to be trouble? A. Yes. F 2d 86, 90, cert denied 321 U S 778 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From Mrs. Moneymaker's testimony, both on direct and on cross-examination, it is apparent that on January 18 she was very alarmed as to the prospects of the plant being closed because of the picketing about which she had been informed the night before. In view of the floorlady's evident preoccupation with this likelihood and the fact that Hattie Massengill and Ruby Chapman were credible witnesses, the Trial Examiner concludes and finds that Mrs. Moneymaker made the statements which they attributed to her. It is likewise the conclusion of the Trial Examiner that Hattie and Louise Massengill were credible witnesses as to the subsequent conversation with Robert Messing on January 20. On the foregoing evidence, the Trial Examiner finds that on January 18, Floorlady Moneymaker told Hattie Massengill that the latter was laid off "because the Union's trying to come in" and that the plant would probably move. The Trial Examiner further finds that 2 days later when Massengill and her sister-in-law talked with Plant Manager Robert Messing, the latter told them that he had problems with the Union and that if they were not solved he planned to move. From Moneymaker's own testimony it is evident that whereas the layoff of Massengill might have occurred at some later time,13 the date was advanced because of the advent of union "trouble." In telling Massengill that she was being laid off "because the Union's trying to come in" Mrs. Moneymaker was acting within the scope of her employment as a floorlady and the employee was entitled to assume that the statement fairly set forth the reason for her termination. Allegheny Pepsi- Cola Bottling Company v. N.L.R.B., 312 F.2d 529, 530-531 (C.A. 3); Federal Tool Corporation, 130 NLRB 210, 220-221. Consequently, the Trial Examiner concludes and finds that the Respondent violated Section 8(a)(3) and (1) in laying off Massengill on January 18. It was a further violation of Section 8(a)(1) for Plant Manager Robert Messing to tell the Massengills on January 20 that his problems with the Union might cause him to leave, thereby implying that if he left, the plant might be closed. 3. Joseph R. Douglas This employee, a truckdnver, was among those laid off on January 18. Douglas himself was never called as a witness and the General Counsel stated that he had been unable to contact Douglas or secure his return for the trial. The General Counsel's case as to this employee rested on the testimony of two former employees, Junior Norman and Willis Walden, both of whom were truckdrivers who were laid off the same day as Douglas. According to Norman, on January 18, and after he learned of Shoup's discharge, he telephoned Douglas who 13 Several weeks after her layoff Massengill was, in fact, offered reinstatement She did not accept, however, having found other employ- ment i4 Walden did not give McCauley's first name, but, presumptively, it was Doyle McCauley whom he meant, the latter named being an admitted supervisor Doyle McCauley was not called as a witness and did not testify James McCauley, a truckdriver and a witness for the Respondent, credibly testified that he had not eavesdropped on this conversation is This is apart from the proposal for concerted action, which, if Norman is to be credited, Douglas suggested on January 18 George Messing testified that on an occasion after the layoff of Douglas, Norman and was not at work that day. Norman testified that Douglas was not at home when he first called, but that a short time later, Douglas returned the call and had him paged at the plant. According to Norman, he answered the call on a plant telephone and after he told Douglas of Shoup's discharge, Douglas proposed that the employees should protest the dismissal of their coworker by staging a walkout or a strike. Willis Walden testified that while Norman was engaged in this telephone call with Douglas, he (Walden) was near the plant office and that he observed four supervisors, namely Robert Wishoun, Don Pierce, Ben Gibson, and McCauley,14 listening at three different telephones in the plant office. Norman testified that only a few minutes after he concluded his telephone call with Douglas, Plant Manager George Messing came to where he was working and announced that he, Walden and Douglas were being laid off. According to Norman, when he sought to inquire as to the reason for the layoff, Messing cut off any discussion with the statement "I am very angry, do not talk with me anymore." George Messing testified that he laid off Norman, Walden, and Douglas on this occasion because there was no work available. He further testified that selections for the layoff were made so that James McCauley, the oldest driver in point of service, was the only one kept. Messing denied having any knowledge of the telephone conversa- tion between Norman and Douglas. Supervisors Wishoun, Pierce, and Gibson all denied that they had listened in on any conversation between the two employees. There was no evidence in the record that prior to his layoff Douglas had engaged in any union activity.15 The three supervisors, Wishoun, Pierce, and Gibson, were credible when they testified that they had never eaves- dropped on the conversation of Douglas and Norman. Since Douglas was not available and did not appear as a witness, the record is lacking whatever light he might have provided as to this incident. is Even if the testimony of Norman and Walden is credited, the record offers no proof that the Respondent's management learned of Douglas' proposal for a walkout to protest Shoup's discharge or, whether, if Plant Manager Messing had such knowledge, the Respondent acted on it in selecting Douglas for layoff. It is the conclusion of the Trial Examiner that the evidence and the sequence of events here involved fail to establish that the layoff of Douglas was discriminatory. Consequently, the Trial Examiner will recommend that the complaint be dismissed Walden, the three last named and other employees were picketing outside the plant entrance until they were dispersed by the police. Apart from this reference, there is nothing in the record to establish that Douglas engaged in any activity on behalf of the IAM prior to the layoff 16 The original charge alleged that Junior Norman and Willis Walden were discnmmatorily terminated The General Counsel, of course, is vested with discretion as to what allegations in a charge he will prosecute It is of some interest that in this instance, the complaint did not name as discnminatees either Norman or Walden, both of whom were available as witnesses and who testified, while the whereabouts of Douglas , who was named in the complaint, were unknown TENNESSEE LEATHER PRODUCTS 501 insofar as it alleges that Douglas' layoff was in violation of Section 8(a)(3) 17 CONCLUSIONS OF LAW I The Respondent is engaged in commerce and the Union is a labor organization , all within the meaning of the Act 2 By discriminating in regard to the hire and tenure of Ove Shoup and Hattie Sue Massengill , thereby discourag- ing membership in the Union, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3 By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforementioned unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act 5 The layoff of Joseph Douglas was not a violation of Section 8(a)(3) of the Act, as alleged by the General Counsel , nor did the Respondent violate the Act other than as herein specifically found THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, the Trial Examiner will recommend that the Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that the Respondent discriminatorily discharged Ove Shoup, the Trial Examiner will recommend that the Respondent be ordered to offer Shoup immediate and full reinstatement without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings that he may have suffered from the time of his suspension and discharge to the date of the Respon- dent's offer of reinstatement Having found that the Respondent discriminatorily laid off Hattie Sue Massen- gill, the Trial Examiner will recommend that the Respon- dent be ordered to make her whole for any loss of earnings that she may have suffered from the time of her discriminatory layoff until the date that she declined to accept reemployment with the Respondent. The backpay of the foregoing employees shall be computed in accord- ance with the formula approved in F W Woolworth Co, 90 NLRB 289, with interest computed in the manner and amount prescribed in Isis Plumbing & Heating Co, 138 NLRB 716, 717-721 It will also be recommended that the said Respondent be required to preserve and make 17 The Respondent also offered some evidence that, during the course of his employment as an over-the-road truckdnver, Douglas falsified his travel money account by overstating the actual expenses he incurred on trips from Tennessee to New York City James McCauley, another driver who was Douglas' partner on many of these trips, credibly testified as to the procedure which Douglas followed McCauley's testimony would tend to prove that the latter regularly padded his expense account during the summer and fall of 1971 Plant Manager George Messing readily conceded that this evidence was not discovered until after January 18, 1972, and that it had not been the cause of Douglas' layoff The evidence was offered to explain why Douglas had not been recalled to work and to establish that by available to the Board or its agents, on request, payroll and other records to facilitate the computation of backpay due. As the unfair labor practices committed by the Respon- dent are of a character striking at the root of employee rights safeguarded by the Act, it will be recommended that the said Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act N L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C A 4) Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner issues the following recommended: ORDER 18 Tennessee Leather Products, Inc., its officers , agents, successors, and assigns, shall. I Cease and desist from: (a) Discharging, or otherwise discriminating against any employee because of membership in, or activity on behalf of, International Association of Machinists & Aerospace Workers, AFL-CIO, or any other labor organization. (b) Coercively, or otherwise unlawfully, interrogating its employees as to their union activities. (c) Threatening to close its plant or take other reprisals if its employees choose a collective- bargaining representa- tive. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Ove Shoup immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Make whole Ove Shoup and Hattie Sue Massengill in the manner set forth in the section of the decision entitled "The Remedy." (d) Preserve, and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records his conduct in this regard, Douglas disqualified himself for reinstatement The latter issue, however, need not be decided, because of the Trial Examiner's conclusion that the General Counsel did not establish that Douglas' layoff was discriminatory 18 In the event no exceptions are filed as provided in Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order , and all objections thereto shall be deemed waived for all purposes 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary or appropriate to analyze the amount of backpay due. (e) Post at its plant in La Follette, Tennessee, copies of the attached notice marked "Appendix." 19 Copies of the notice, on forms provided by the Regional Director for Region 10, after being duly signed by the Respondent's authorized representative, shall be posted by it fora period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director for Region 10, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.20 IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 19 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 20 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read "Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order , what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Interna- tional Association of Machinists & Aerospace Workers, AFL-CIO, or any other union, by discharging, or otherwise discriminating against our employees be- cause of their union or concerted activities. WE WILL NOT coercively, or otherwise unlawfully, interrogate employees as to their umon activities. WE WILL NOT threaten to close our plant or take other reprisals if our employees choose a umon to represent them. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist the above-named union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL reinstate Ove Shoup to his former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. WE WILL make whole Ove Shoup and Hattie Sue Massengill for any loss of pay suffered as a result of the discrimination against them. TENNESSEE LEATHER PRODUCTS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760.